Punishment

The concept of punishment—its definition—and its practical
application and justification during the past half-century have shown a
marked drift away from efforts to reform and rehabilitate offenders in
favor of retribution and incarceration. Punishment in its very
conception is now acknowledged to be an inherently retributive
practice, whatever may be the further role of retribution as a (or the)
justification or goal of punishment. A liberal justification of
punishment would proceed by showing that society needs the threat and
the practice of punishment, because the goal of social order cannot be
achieved otherwise and because it is unfair to expect victims of
criminal aggression to bear the cost of their victimization.
Constraints on the use of threatened punishments (such as due process
of law) are of course necessary, given the ways in which authority and
power can be abused. Such a justification involves both deontological
as well as consequentialist considerations.

Philosophical reflection on punishment has helped cause, and is
itself partially an effect of, developments in the understanding of
punishment that have taken place outside the academy in the real world
of political life. A generation ago sociologists, criminologists, and
penologists became disenchanted with the rehabilitative effects (as
measured by reductions in offender recidivism) of programs conducted in
prisons aimed at this end (Martinson 1974). This disenchantment led to
skepticism about the feasibility of the very aim of rehabilitation
within the framework of existing penal philosophy. To these were added
skepticism over the deterrent effects of punishment (whether special,
aimed at the offender, or general, aimed at the public) and as an
effective goal to pursue in punishment. That left, apparently, only two
possible rational aims to pursue in the practice of punishment under
law: Social defense through incarceration, and retributivism. Public
policy advocates insisted that the best thing to do with convicted
offenders was to imprison them, in the belief that the most economical
way to reduce crime was to incapacitate known recidivists via
incarceration, or even death (Wilson 1975). Whatever else may be true,
this aim at least has been achieved on a breathtaking scale, as the
enormous growth in the number of state and federal prisoners in the
United States (some 2.3 million in year 2015, including over 3,000 on
“death row”) attests.

At the same time that enthusiasm for incarceration and
incapacitation was growing as the preferred methods of punishment,
dissatisfaction with the indeterminate prison sentence—crucial to
any rehabilitative scheme because of the discretion it grants to penal
officials—on grounds of fairness led policy analysts to search for
another approach. Fairness in sentencing seemed most likely to be
achievable if a criminal sentence was of a determinate rather than
indeterminate duration (Allen 1981). But even determinate sentencing
would not be fair unless the sentences so authorized were the
punishments that convicted offenders deserved. Thus was born
the doctrine of “just deserts” in sentencing, which effectively
combined the two ideas.[1]
By this route the goals of incapacitation
and retribution came to dominate, and in some quarters completely
supersede, the goals of rehabilitation and deterrence in the minds of
politicians and social theorists.

Concurrently with these broadly socio-legal developments (to which
might be added the despair of practitioners that reached its peak with
the police assault on rioting prisoners in New York’s Attica prison in
1972) philosophers were crafting their own arguments, reviving classic
views associated with the names of Kant and Hegel to establish two
principal ideas that fit surprisingly well with those reviewed above.
First, philosophers urged that reformation of convicted offenders
(especially in its more medically inspired modes, vividly depicted in
fictionalized form in Anthony Burgess’s Clockwork
Orange[1962]), is not the aim, or even a subsidiary aim among
several, of the practice of punishment. Aside from being an impractical
goal, it is morally defective for two reasons: It fails to respect the
convicted offenders’ autonomy, and it flouts the offenders’
right to be punished for the wrongdoing he intentionally
caused (Morris 1968). (The oddity of a theory that affirms having and
exercising a right to be punished has not escaped notice.) Second,
justice or fairness in punishment is the essential task of sentencing,
and a just sentence takes its character from the culpability of the
offender and the harm the crime caused the victim and society (Card
1973, von Hirsch 1985, Nozick 1981: 366–74). In short, just punishment
is retributive punishment. Philosophers reached these conclusions
because they argued that there were irreducible retributive aspects to
punishment—in the very definition of the practice, in the norms
governing justice in punishment, and in the purpose of the practice as
well.

As a result, the ground was cut out from under the dominant penal
policy of mid-century, the indeterminate sentence in the service of the
rehabilitative ideal for offenders behind bars. Probation as the
essential nonincarcerative alternative sanction received an expanded
role, but release on parole came to a virtual end. In its place (but as
it turned out, only in theory) was uniform determinate sentencing,
which would avoid the follies of unachievable rehabilitative goals and
ensure both incapacitation and even-handed justice for all offenders.
(This was, of course, before the political process distorted these
aims. Not all admirers of justice in punishment supported determinate
sentencing.) The culmination of this trend appears in the Sentencing
Reform Act of 1984, which spawned the United States Sentencing
Commission and its Federal Sentencing Guidelines. The doctrine has not
been without its critics, both in theory and in practice (Zimring
1977). But to date, no alternative approach shows any
signs of supplementing the just deserts sentencing philosophy—no
matter how preposterous in practice the claim that a given punitive
sentence is justly deserved may be in most cases.

There has been a third development concurrent with the two outlined
above, far less influential in the formation of actual penalty policy
even if it is of equal theoretical importance (Harding 1989). We refer
to the reconceptualization of the practice of punishment arising from
the work of Michel Foucault in the mid-1970s. Foucault invited us to
view the practice of punishment under law as subject to general forces
in society that reflect the dominant forms of social and political
power—the power to threaten, coerce, suppress, destroy,
transform—that prevail in any given epoch. And he also cultivated a deep
suspicion toward the claims that contemporary society had significantly
humanized the forms of punishment by abandoning the savage corporal
brutality that prevailed in the bad old days, in favor of the hidden
concrete-and-steel carceral system of the modern era (Foucault
1977).

Foucault’s insights arose from a historical, socioeconomic, and
psychodynamic approach to punishment. Professed goals of punishment,
norms constraining the use of power in the pursuit of these goals, the
aspiration for justice in punishment—all these, if Foucault is
right, turn out to mask other (not necessarily conscious) intentions
among reformers that belie the ostensible rationality (not to say
rationalization) of their aims since the Enlightenment. Thus, the
movement against capital punishment in the late eighteenth century is
not to be explained (or, presumably, justified) by the influence of
conscious, rational utilitarian calculations of the sort that Beccaria
and Bentham argued had persuaded them to oppose the death penalty
(Bedau 1983, Maestro 1973). It is explained instead by disenchantment
with the theatrical, dramaturgical, aspects of public executions and a
self-deceiving humanitarian impulse that merely shifted but otherwise
left unaltered the nature and locus of the power wielded over criminals
by society—perfectly embodied in Bentham’s visionary carceral
scheme, the notorious Panopticon prison (Semple 1993).

Two features at least of Foucault’s explorations into the practice
of punishment in Western society deserve mention here. First, he
ignored the analytical distinctions that philosophers in the
Anglo-American tradition had made familiar (to be discussed below).
None plays any visible role in his account of the theory or practice of
punishment. Some interpreters might not only acknowledge this, they
would go further and argue that Foucault offers no philosophical views
about punishment at all—because conceptual and normative analysis
and the search for principles on which to rest policy are at best
obscurely and indirectly pursued in his writings. Instead, so this
interpretation declares, he is just a social commentator (or some other
form of critical humanist) (Garland 1990). But this interpretation
fails to do him justice. Foucault’s views are, at least in part,
unmistakably philosophical. Not only do they issue in claims that are
not obviously testable empirical hypotheses, they involve large-scale
reflections on and reinterpretations of human nature, public
institutions, and the point of our punitive practices.

Second, Foucault implicitly challenges the very idea of any form of
justification of the practice of punishment. He is, in his way, a
paradigmatic thinker whose views about punishment can be called
anti-foundationalist. What emerges from his account is the view that
what passes for the justification of punishment (as with any other
social practice) is inextricably tied up with assumptions,
beliefs—in short, with ideology—that have no independent
rational foundation. The very idea that penal institutions can be
justified is suspect, self-delusive. Foucault more than any other
recent thinker who has reflected on the institutions of punishment in
western society, has brought historicist, anti-analytic, and
anti-foundationalist convictions together, thus sowing deep
uncertainty over how and even whether to address the task of
justifying punishment.

In all these respects, Foucault must be seen as the modern successor
to Friedrich Nietzsche—Foucault’s great albeit unacknowledged
predecessor in the philosophy of punishment. More than any thinker
before or since, Nietzsche understood the way punishment is
“overdetermined by utilities of every sort” and survives now under
this, now under that interpretation of its purposes—because the
desire to punish (and thereby subordinate, coerce, transform) other
persons is so deeply rooted in human nature (Nietzsche 1887).

The cumulative effect of these forces, political and intellectual,
has been to undermine confidence in the classic Enlightenment or
liberal view of punishment found, for example, in Hobbes, Locke,
Bentham, and Mill. Perhaps this is an exaggeration; one might argue
that since it is unclear just what a liberal view of punishment really
is, successfully undermining it is equally uncertain. Liberalism in
punishment, it is true, has no canonical formulation; instead, it has
been multiply ambiguous during its career of more three centuries, as
scrutiny of Beccaria’s influential proposals for reform at the zenith
of the Enlightenment show (Beccaria 1764). What is needed is a
reassertion, reformulation, and redeployment of recognizably liberal
ideas in the theory of punishment (see the discussion below).

The prevailing features in the modern theory of punishment were
developed by analytic philosophers half a century ago. The theory in
the Anglo-American philosophical world was and still is governed by a
small handful of basic conceptual distinctions, self-consciously
deployed by virtually all theorists no matter what substantive views
they also hold about punishment. The terminus a quo of these ideas are
the influential writings of H.L.A. Hart (1959) in England and John
Rawls (1955) in the United States. Though both Hart and Rawls pass
muster as centrist liberals, they believed these analytic distinctions
to be ideologically neutral.

Defining the concept of punishment must be kept distinct
from justifying punishment. A definition of punishment is, or
ought to be, value-neutral, at least to the extent of not incorporating
any norms or principles that surreptitiously tend to justify whatever
falls under the definition itself. To put this another way, punishment
is not supposed to be justified, or even partly justified, by packing
its definition in a manner that virtually guarantees that whatever
counts as punishment is automatically justified. (Conversely, its
definition ought not to preclude its justification.)

Justifying the practice or institution of punishment must
be kept distinct from justifying any given act of punishment.
For one thing, it is possible to have a practice of punishment—an
authorized and legitimate threat system—ready and waiting without
having any occasion to inflict its threatened punishment on anyone
(because, for example, there are no crimes or no convicted and
sentenced criminals). For another, allowance must be made for the
possibility that the practice of punishment might be justified even
though a given act of punishment—an application of the
practice—is not.

Justification of any act of punishment is to be done by reference
to the norms (rules, standards, principles) defining the
institutional practice—such as the classic norms of Roman law,
nullum crimen sine lege and nulla poena sine lege
(no crime without law, no punishment without law). Justification of
the practice itself, however, necessarily has reference to very
different considerations—social purposes, values, or goals of
the community in which the practice is rooted. The values and
considerations appropriate to justifying acts are often assimilated to
those that define judicial responsibility, whereas the values that
bear on justifying the punitive institution are akin to those that
govern statutory enactments by a legislature.

The practice of punishment must be justified by reference
either to forward-looking or to backward-looking considerations. If
the former prevail, then the theory is likely to
be consequentialist and probably some version of
utilitarianism, according to which the point of the practice of
punishment is to increase overall net social welfare by reducing
(ideally, preventing) crime. If the latter prevail, the theory is
deontological; on this approach, punishment is seen either as
a good in itself or as a practice required by justice, thus making a
direct claim on our allegiance. A deontological justification of
punishment is likely to be a retributive justification. Or, as a third
alternative, the justification of the practice may be found in some
hybrid combination of these two independent alternatives. Attempts to
avoid this duality in favor of a completely different approach have
yet to meet with much success (Goldman 1982, Hoekema 1986, Hampton
1984, Ten 1987, von Hirsch 1993, Tadros 2013).

Acknowledgment of these distinctions seems to be essential to
anything that might be regarded as a tolerably adequate theory of
punishment.

Two substantive conclusions have been reached by most philosophers
based in part on these considerations. First, although it is possible
to criticize the legitimacy or appropriateness of various individual
punitive acts—many are no doubt excessive, brutal, and
undeserved—the practice of punishment itself is clearly justified, and in
particular justified by the norms of a liberal constitutional
democracy. Second, this justification requires some accommodation to
consequentialist as well as to deontological considerations. A
strait-laced purely retributive theory of punishment is as
unsatisfactory as a purely consequentialist theory with its
counter-intuitive conclusions (especially as regards punishing the
innocent). The practice of punishment, to put the point another way,
rests on a plurality of values, not on some one value to the exclusion
of all others.

So much by way of review of the recent past as a stage setting for
what follows—a sketch of what we take to be the best general approach
to the problem of defining and justifying punishment.

Justifications of Punishment As a first step we
need a definition of punishment in light of the considerations
mentioned above. Can a definition be proposed that meets the test of
neutrality (that is, does not prejudge any policy question)? Consider
this: Punishment under law (punishment of children in the home, of
students in schools, etc., being marginal rather than paradigmatic) is
the authorized imposition of deprivations—of freedom or privacy
or other goods to which the person otherwise has a right, or the
imposition of special burdens—because the person has been found
guilty of some criminal violation, typically (though not invariably)
involving harm to the innocent. (The classical formulation,
conspicuous in Hobbes, for example, defines punishment by reference to
imposing pain rather than to deprivations.) This definition, although
imperfect because of its brevity, does allow us to bring out several
essential points. First, punishment is an authorized act, not an
incidental or accidental harm. It is an act of the political authority
having jurisdiction in the community where the harmful wrong
occurred.

Second, punishment is constituted by imposing some burden or by some
form of deprivation or by withholding some benefit. Specifying the
deprivation as a deprivation of rights (which rights is
controversial but that controversy does not affect the main point) is a
helpful reminder that a crime is (among other things) a violation of
the victim’s rights, and the harm thus done is akin to the kind of harm
a punishment does. Deprivation has no covert or subjective reference;
punishment is an objectively judged loss or burden imposed on a
convicted offender.

Third, punishment is a human institution, not a natural event
outside human purposes, intentions, and acts. Its practice requires
persons to be cast in various socially defined roles according to
public rules. Harms of various sorts may befall a wrong-doer, but they
do not count as punishment except in an extended sense unless they are
inflicted by personal agency.

Fourth, punishment is imposed on persons who are believed to have
acted wrongly (the basis and adequacy of such belief in any given case
may be open to dispute). Being found guilty by persons
authorized to make such a finding, and based on their belief in the
person’s guilt, is a necessary condition of justified punishment.
Actually being guilty is not. (For this reason it is possible
to punish the innocent and undeserving without being unjust.)

Fifth, no single explicit purpose or aim is built by definition into
the practice of punishment. The practice, as Nietzsche was the first to
notice, is consistent with several functions or purposes (it is not
consistent with having no purposes or functions whatever).

Sixth, not all socially authorized deprivations count as
punishments; the only deprivations inflicted on a person that count are
those imposed in consequence of a finding of criminal guilt (rather
than guilt only of a tort or a contract violation, or being subject to
a licensing charge or to a tax). What marks out nonpunitive
deprivations from the punitive ones is that they do not express social
condemnation (Feinberg 1965, Bedau 2001). This expression is internal,
not external, to the practice of punishment.

Finally, although the practice of punishment under law may be the very
perfection of punishment in human experience, most of us learn about
punishment well before any encounters with the law. Thus,
“authorized deprivation” must not be so narrowly
interpreted as to rule out parental or other forms of
“punishment” familiar to children, even though those
deprivations are often ambiguous in ways that punishment under law is
not.

It is helpful in assessing various candidate justifications of
punishment to keep in mind the reasons why punishment needs to be
justified.

Punishment—especially punishment under law, by officers of the
government—is (as noted above) a human institution, not a natural
fact. It is deliberately and intentionally organized and practiced. Yet
it is not a basic social institution that every conceivable society
must have. It is a testimony to human frailty, not to the conditions
necessary to implement human social cooperation. It also has no more
than an historical or biological affinity with retaliatory harm or
other aggressive acts to be found among nonhuman animals or (despite
thinkers from Bishop Joseph Butler (1723) to Sir Peter Strawson (1962)
to the contrary) with the natural resentment that unprovoked aggression
characteristically elicits.

The practice or institution of punishment is not necessary,
conceptually or empirically, to human society. It is conceivable even
if impracticable that society should not have the practice of
punishment, and it is possible—given the pains of punishment—that
we might even rationally decide to do without it. Not surprisingly,
some radical social thinkers from time to time (and even today) have
advocated its abolition (Skinner 1948, Bedau 1991, A. Davis, 2003).

Punishment under law, and especially in a liberal constitutional
democracy, incurs considerable costs for persons involved in carrying
it out, whatever the benefits may be. Some rationale must be provided
by any society that deliberately chooses to continue to incur these
costs. The matter is aggravated to the extent that society prefers to
incur these costs rather than those of alternative social interventions
with personal liberty that might result in preventing crime in the
first place and healing the wounds of its victims (Currie 1985).

By way of expansion on some of the considerations alluded to above,
we must not forget or obscure the importance of the fact that
punishment by its very nature involves some persons (those who carry
out punitive acts) having dominant coercive power over others (those
being punished). To seek to be punished because one likes it, is
pathological, a perversion of the normal response, which is to shun or
endure one’s punishment as one might other pains, burdens,
deprivations, and discomforts. (Only among the Raskolnikovs of the
world is one’s deserved punishment welcomed as a penance.) To try to
punish another without first establishing control over the would-be
punishee is doomed to failure. But the power to punish—as distinct
from merely inflicting harm on others—cannot be adventitious; it
must be authoritative and institutionalized under the prevailing
political regime.

Finally, because the infliction of punishment is normally intended
to cause, and usually does cause, some form of deprivation for the
person being punished, the infliction of punishment provides
unparalleled opportunity for abuse of power. To distinguish such abuses
both from the legitimate deprivations that are essential to punishment
and from the excesses of punitive sentences that embody cruel and
inhumane punishments, one must rely on the way the former are connected
to (and the latter disconnected from) whatever constitutes the sentence
as such and whatever justifies it (Bedau 1972). This is especially true
where punishment through the legal system is concerned, since the
punishments at the system’s disposal—as well as the abuses—are
typically so severe.

The general form of any possible justification of punishment
involves several steps. They start with realizing that punishing people
is not intelligibly done entirely or solely for its own sake, as are,
say, playing cards or music, writing poetry or philosophy, or other
acts of intrinsic worth to their participants. Nietzsche and Foucault
are among those who would dispute this claim, and they may have history
on their side. They think that human nature is such that we do get
intrinsic even if disguised satisfactions out of inflicting authorized
harm on others, as punishment necessarily does. Others will regard this
satisfaction, such as it is, as a perversity of human nature, and will
say that we retain the practice of punishment because it enables us to
achieve certain goals or results.

Although punishment can be defined without reference to any purposes,
it cannot be justified without such reference. Accordingly, to justify
punishment we must specify, first, what our goals are in establishing
(or perpetuating) the practice itself. Second, we must show that when
we punish we actually achieve these goals. Third, we must show that we
cannot achieve these goals unless we punish (and punish in certain
ways and not in others) and that we cannot achieve them with
comparable or superior efficiency and fairness by nonpunitive
interventions. Fourth, we must show that striving to achieve these
goals by way of the imposition of deprivations is itself
justified. Justification is thus closed over these four steps;
roughly, to justify a practice of punishment—if not everywhere
then at least in a liberal constitutional democracy—it is
necessary and sufficient to carry out these four tasks.

Unsurprisingly, no matter what actual society we find ourselves in,
we can contest each of these four steps, especially the last. Just as
there is no theoretical limit to the demands that can be made in the
name of any or all of these tasks, there is also no bedrock on which to
stand as one undertakes either a critique of existing systems of
punishment or the design of an ideal system. As a result, the
foundations of punishment imitate the topology of a Moebius strip—if
any path is pursued far enough, it will return to itself and one loses
one’s grip on what is inside and what outside the justification.
Metaphor apart, the inescapable forensic quality of justification
defeats all forms of what might be called linear—whether top-down or
bottom-up—foundationalism.

For several decades philosophers have (over-) simplified the picture
of possible forms of normative justification in ethics, policy
formation, and law into two alternatives: consequentialist and
deontological. They have also undertaken to apply this distinction to
the justification of punishment. By a purely consequentialist theory, we
mean a theory that imposes no constraints on what counts as the fourth
step in justification (see above). The pure consequentialist views
punishment as justified to the extent that its practice achieves (or is
reasonably believed to achieve) whatever end-state the theorist
specifies (such as the public interest, the general welfare, the common
good). Most philosophers would reject this view in favor of introducing
various constraints, whether or not they can in turn be justified by
their consequences. Thus, a most important part of the theory of
punishment is the careful articulation of the norms that provide these
constraints on the practice and their rationale.

As for individual acts of punishment—typically, the sentence a
court metes out to a convicted offender and the infliction of that
sentence on the offender—their justification falls within the
justification of the practice itself. In any case they could not be
reasonably be justified purely on consequentialist grounds (as an
act-utilitarian might wish to do). Sentencers lack sufficient
information about all the actual or probable effects of inflicting one
rather than another punishment on a given offender at a given time.
They lack as well the opportunity and time to secure such information
and to use it to inform their sentences. As a result sentencers must
content themselves with a largely procedural justification of most of
the punishments they impose. Insofar as the system of punishment on
which they rely is essentially just, none of the sentencing acts that
the institution warrants are unjust (they may, of course, be
unwise).

The best justification of punishment is also not purely
retributivist. The retributive justification of punishment is founded
on two a priori norms (the guilty deserve to be punished, and no moral
consideration relevant to punishment outweighs the offender’s criminal
desert) and an epistemological claim (we know with reasonable certainty
what punishment the guilty deserve) (Primoratz 1989, M. Moore 1987). It
is arguable, however, whether the guilty always do deserve to be
punished; it is also arguable whether, even when they do they ought
always to get what they deserve; and it is further arguable whether
when they ought to be punished as they deserve, the punisher always
knows what it is they deserve (except in the purely procedural sense
alluded to above; see also below) (Bedau 1978). We cannot meet these
challenges to the deontological retributivist by insisting that
punishment is nothing more than a necessary conceptual consequence of
living under the rule of law (Fingarette 1978).

Even apart from the problems above, retributivists have yet to
construct a nonarbitrary way of deciding what sentence the guilty
offender deserves as punishment. Retributivists, ancient and modern,
have always been lured by one or another form of lex talionis
(Davis 1992), despite objections dating from post-biblical times to the
present (Walker 1991). Nor does it suffice to abandon like-for-like
retaliation in punishment in favor of restating the basic retributive
principle in nontalionic form: Severity in punishment must be
proportional to the gravity of the offense. Few will argue against this
principle, but it still leaves us with a spectrum of alternatives among
which to choose, marked at one end by a positivistic legalism
(offenders deserve whatever the penal code provides as their
punishment) and at the other end by an inchoate moralism (offenders
deserve whatever accords with their moral culpability and the harm they
have caused).

All retributive attempts to specify the penalty schedule linking crimes
to their punishments fail because the proportionality principle
underdetermines the schedule. There is no nonarbitrary way to locate
either the end points of maximum and minimum severity defining the
penalty schedule or the intervals between adjacent punishments
(Pincoffs 1977). Without more information it is impossible to calculate
which crimes deserve which punishments; an infinite number of different
penalty schedules are equally consistent with the retributivist’s
proportionality principle. And retribution cannot supply the further
information needed. As a result, every penalty schedule purporting to
incorporate retributive principles exclusively fails to the extent that
any given punishment cannot be justified by those principles alone.

But the basic insights of retributivism cannot be merely brushed
aside. There is a role for desert in a liberal theory of punishment,
but its scope needs careful restriction. The retributivist relies on
the assumption that the criminal laws whose violation makes one
eligible for punishment protect genuine individual rights.
Were this not so, the retributivist could not claim that justice
requires punishment for the violation of the law. Nor could the
retributivist claim that the resentment or indignation directed toward
offenders is fitting, rather than merely ill-disguised anger.
Retributivism, whether in law or morals, without an appeal, tacit or
express, to the justice of punishment is inconceivable—or
inconceivably distinct from mere retaliation or revenge (Nozick 1981,
Henberg 1990).

Once this is acknowledged there emerges an unmistakable
forward-looking, nonretributive point to introducing liability to
punishment for law violation, publication of this liability so that it
works as a threat, and expectation of increased compliance with the
law because of dislike of the perceived punitive threat by most people
and their unwillingness to risk incurring what is threatened for
noncompliance. Risk of punishment provides an incentive for any normal
person to comply with just laws protecting individual rights. No
purely backward-looking conception of the practice of punishment,
focused exclusively on the desert of the offender, can accommodate
provisions for this incentive.

On the view sketched so far, a system of punishment under law is
fundamentally a technique of social control (Gibbs 1975), and its
employment is justified to the extent that it actually protects such
social justice as society through its laws has achieved. This purpose
is external, not internal, to the practice of punishment. To accept
this conception of punishment is to concede the central claim of the
consequentialist, not that of the retributivist. The institution of
punishment so conceived is thus not justified on purely deontological
or on purely consequential grounds, because punishment manifests some
features of each line of consideration, even though the principles
justifying it are nonretributive. Nevertheless, punishment retains
some retributive elements, conceptually and normatively. Any given
act of punishment may look starkly retributive to the one who
undergoes it—the sentence imposed is a deprivation inflicted
on someone found guilty, and not on anyone else, and it is imposed
solely because of that finding.

Against this background we can now consider a step-by-step argument
for a liberal justification of punishment. The general idea has been
presented in various forms and fragments over the past half century by
many writers.[2]

We can begin with an empirical generalization of unimpeachable
reliability: Some kinds of intentional human conduct are harmful to
others, and it is inappropriate to expect (teach, require) people who
have been victimized by such harm either to forgive those who harmed
them or to suffer the harm in silence. (Private retaliation must also
be pre-empted by general confidence that offenders will be arrested,
tried, convicted, and sentenced by the authorities.) In a just society,
undeserved victimization is understood to violate individual rights and
is therefore prohibited by law and is punishable. Thus the color and
texture of any possible justification for punishment will depend upon
more general political and moral theory, consistent with the
responsibilities for legal protection afforded by a just society.
Justification for punishment under law thus emerges as a contingent
matter, inescapably dependent on other and deeper normative
considerations that only a theory of social justice can
provide.[3]

To repeat, in a society that takes justice seriously, such
intentionally harmful conduct will be prohibited by law and, and if and
when it occurs, condemned under the law. To do otherwise would be to
fail to protect and vindicate the rights of individuals that the
criminal law is principally designed to protect. The central instrument
of such condemnation is the penal sanction attached to the law that
defines certain harmful acts as crimes.

In a just society that is also a rational society, unlawful harmful
conduct is preferably prevented before the fact rather than punished
after the fact. From society’s point of view, compliance under threat
is much to be preferred to noncompliance followed by arrest, trial,
conviction, sentence, and punishment. (There are exceptions, of
course; justified civil disobedience is one of them.) But compliance
is not so valuable that it is worth trying to increase it at any
price, especially at the price of irreparable invasions of personal
liberty. Thus, a person’s willing compliance with the law as a
consequence of having internalized the norms of a just society is
preferable to one’s unwilling compliance or intentional
noncompliance. But if willing compliance is not forthcoming, then
society must settle for second-best—unwilling
compliance—since it is preferable to noncompliance. Prohibition by law
plays an essential role in securing grudging compliance, and the
principal vehicle for such prohibition is the punitive sanction
attached to violation of the criminal law. No doubt, non-deterrent
effects of the sanction system, such as the expressive affirmation of
shared values, are more important for general compliance than are the
deterrent effects. Still, once such sanctions are in place, they
create public liability to authorized punishment.

Even in a just society, not every person will comply with the law, and
not everyone who does comply will do so out of respect for the rights
of others, that is, out of recognition of others as persons with
rights deserving mutual respect. Here we encounter in another form the
fundamental rights-protecting principle on which the system of
punishment is built: It is better to increase law compliance by
liability to sanctions of those who would otherwise violate the law
than it is to permit them to act on their perverse autonomy without
any socially imposed cost to themselves, since that would require us
to tolerate the victimization of the innocent. Such toleration would
be at odds with the moral urgency of protecting rights. For this
reason, rational self-interested persons acting behind a veil of
ignorance would choose to impose on themselves and on others a
liability to criminal sanctions for certain law violations.

If the punitive sanction is to function effectively as a preventive
of noncompliance, then it must be perceived not only as a legitimate
threat but also as a credible threat. Its legitimacy is established by
its protection of individual rights, its authorization by
constitutional procedures, and its administration through due process
and equal protection of the law. Its credibility is established by its
being generally perceived to be both reasonably severe (hence
unpleasant) and effectively enforced (hence arrest and its consequences
is likely for anyone who does not comply).

There are, however, constraints in the use of penal threats and
coercion even to preserve a just social system. Four are particularly
important for a liberal theory of punishment.

Punishments must not be so severe as to be inhumane or (in the
familiar language of the Bill of Rights) “cruel and
unusual.”

Punishments may not be imposed in ways that violate the rights of
accused and convicted offenders (“due process of law” and
“equal protection of the laws”).

Punitive severity must accord with the relative severity of the
crime: The graver the crime, the more severe the deserved
punishment. The severity of the crime is a function of the relative
importance of the reasons we have to dissuade people from committing
it, reasons that will make reference to harms done to victims, to
social relationships, and to the security of our rights.

Punitive severity is also subject to the principle of minimalism
(less is better), that is, given any two punishments not ruled out by
any of the prior principles and roughly equal in retributive and
preventive effects for a given offense and class of offenders, the less
severe punishment is to be preferred to the more severe.

Conviction of an accused offender under laws that satisfies the
foregoing criteria establishes an individual’s eligibility
for punishment. His liability to punishment is determined by
his own acts and omissions in regard to those laws. All and only
punishments that are the product of a system of law consistent with
the foregoing constraints may be said to be deserved by the offender.
Deserved punishment, insofar as it exists at all, thus emerges as a
result of “pure procedural justice” (Rawls 1971). That is,
we have only the vaguest idea of the just or deserved punishment for a
given offender guilty of a given crime apart from the sentencing
schedule provided by the laws of a just society (and thus laws that
conform to the constraints above). The punishment deserved is the
punishment authorized under a fair penalty schedule; no other
conception of deserved punishment can be defended; the perennial lure
of an illusory independent criterion for desert, founded ultimately on
intuition, as well as of utilitarian calculations, must be
resisted. Given this account of desert, anyone both liable and
eligible for punishment deserves to be punished, and ceteris paribus
ought to be
punished.[4]

The argument for imposing deserved punishments so defined on guilty
offenders is thus in part an argument from consistency. It is
inconsistent to specify liability and eligibility conditions for
punishment and then not apply the sanction so authorized when the facts
in a given case show that it is warranted. It is unfair to the
law-abiding for law-breakers to incur no socially approved cost for
their misconduct; it is unfair because it would create a class of
harmful free riders in the society. The socially approved costs of
crime imposed on offenders consist mainly in the deprivations
authorized by the punitive sanction. Fairness to the law-abiding also
suggests that society ought to expend a reasonable fraction of its
resources in combating crime and preventing victimization.

The creation of a punitive sanction in the name of fairness and
under the circumstances specified above is justified. So is the
infliction of such a sanction in the name of compliance with the law.
Therefore, the practice of punishment, including creating liability to
punishment, using sanctions as a threat and an incentive for compliance
and actually inflicting the punishment where eligibility conditions are
met, is justified.

The foregoing argument incorporates deontological and consequentialist
considerations. It is better than a pure retributivism because it
shows why a system of punishment is needed and how that system is to
be nested into the larger political and moral concerns of a just
society. It allots a clear and defensible function to punishment
(social defense) without yielding to atavistic demands for retaliation
or to illusory deontological demands for pure retributive justice, and
without pretending that the punishments it metes out are
“deserved” in any fundamental sense. The argument
acknowledges the sovereign choices of the individual without invoking
any awkward and paradoxical “right to be punished” (Morris
1968). It is better than a pure consequentialism, because it
constrains punitive interventions with individual liberty to the bare
minimum consistent with achieving the purpose of punishment and it is
consistent with the rights of offenders. Through the punishment
system, all are given fair warning that they put their own rights at
risk if they intentionally engage in certain kinds of harmful conduct
(H.L.A. Hart 1959). Furthermore, punishment coincides with an ordered
hierarchy of moral norms. It has the right “expressive
function” (Feinberg 1965)

The system of punishment that emerges under this theory is liberal
and non-paternalistic, respects the nominal autonomy of all persons
equally, and acknowledges the contingency of its justification as
applied in any given case.

It is also true that the system of punishment that emerges under this
argument leaves punishment in any actual individual case something of
a ritual—in some cases an empty ritual, and in any case a
highly formalized act whose exact expressive function and
incapacitative effects are uncertain. Acts of punitive deprivation
must be imposed on each convicted offender without the comfort of
believing, much less knowing, that the purposes for which the system
of punishment was designed and maintained will really be advanced by
inflicting a given punishment. Too much punishment vs. too little
punishment plagues every actual sentencing decision. Some have been
led by this fact to view punishment with considerable distrust,
because we cannot count on it having any beneficial effect on the
punished (Duff 1986)—or on the rest of society. Others are
less troubled by this because they focus on how the expressive
function of punishment under law serves society by making punishment
of whatever degree a “symbol of infamy,” whatever its
other effects may be (Feinberg 1965). Nevertheless, the stigma of
punishment can go too far, in effect rendering sentences
indeterminate.

Notice, finally, that the entire argument for the justification of
punishment unfolds in the belief that alternative, non-punitive methods
of social control have been examined and rejected (or severely limited
in scope) on the ground that they will not suffice—or will not work
as well as punitive methods in securing compliance with just laws.

Many details remain to be specified before we have a comprehensive
liberal theory of punishment in hand. Philosophy can, of course, help
supply certain desiderata of the theory, such as specification of the
quality and quantity of deprivations (the modes of punishment)
appropriate to include in the penalty schedule; construction of the
schedule coordinate with the class of crimes; identification of
subordinate norms to supplement those already mentioned, which serve as
constraints on the schedule and the imposition of sanctions on any
given offender; and specification of the norms that make it appropriate
to reduce or even waive punishment in favor of some nonpunitive
alternative response in a given case (K. Moore 1989). But philosophy
alone cannot provide the necessary details; philosophical argument by
itself would underdetermine a penal code and has no means to administer
one. Yet the heart of a liberal theory of punishment in practice lies
in its code of sanctions and their fair administration. Further
development of this theory, and its full policy implications, must take
place in another forum.

Acknowledgments

The editors would like to thank Bliss Carnochan for spotting a mistake
in an earlier version of this entry; the statistics concerning the
number of prisoners in federal and state prisons were in error and
they have now been fixed.